TABLE OF CONTENTS Page STATEMENT OF FACTS ................................................................................................................1 I. FATAL COLLISIONS OF MIGRATORY BIRDS AT COMMUNICATION TOWERS ...........................................................................................1 II. THE FCC’S TOWER LICENSING PROGRAM .................................................................5 III. THE FCC’S FAILURE TO COMPLY WITH REQUESTS FROM USFWS TO ADDRESS AVIAN MORTALITY ..................................................................8 IV. STATUTORY BACKGROUND...........................................................................................11 V. THE FCC’S FAILURE TO RESOLVE PETITIONERS’ REQUESTS TO MITIGATE BIRD MORTALITY CAUSED BY COMMUNICATION TOWERS.....................................................................................15 JURISDICTION ................................................................................................................................17 ARGUMENT ....................................................................................................................................18 I. INTRODUCTION .................................................................................................................18 II. THE FCC’S DELAY EXCEEDS THE RULE OF REASON...............................................19 A. Timing Provisions in the ESA, NEPA and the MBTA Demonstrate that the FCC’s Delay is Unreasonable..................................................20 B. The FCC’s Delay Is Unreasonable Because It Defeats Congressional Intent..................................................................................22 C. The FCC’s Delay Is Not Excuse by the Commissions’ Purportedly “Imminent Plans” to Devote More Time to the Problem of Bird Mortality ...............................................................................23 D. The FCC’s Delay Is Unreasonable Because It Ignores the Available Scientific Evidence of the Impact of Communication Towers upon Migratory Birds.........................................................25 E. The FCC’s Delay Harms Human Welfare .................................................................25 CONCLUSION..................................................................................................................................27

ii

TABLE OF AUTHORITIES

CASES

Airline Pilots Association v. Civil Aeronautics Board, 750 F.2d 81 (D.C. Cir. 1984) .............................................................................................19

In re American Rivers, 372 F.3d 413 (D.C. Cir. 2004) ...........................................................................................19

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, et al., 515 U.S. 687 (1995).....................................................................................................11, 12

Cutler v. Hayes, 818 F.2d 879 (D.C. Cir. 1987) ...........................................................................................22

Florida Key Deer v. Stickney, 864 F.Supp. 1222 (S.D. Fla. 1994) ..............................................................................13, 20

Hawksbill Sea Turtle v. Federal Emergency Management Agency, 11 F.Supp.2d 529 (D.N.J. 1998) ........................................................................................13

Humane Society v. Glickman, 217 F.3d 882 (D.C. Cir. 2000) ...........................................................................................15

MCI Telecommunications Corp. v. FCC, 627 F.2d 322 (D.C. Cir.1980) ............................................................................................19 Missouri v. Holland, 252 U.S. 416 (1920)...........................................................................................................15 National Committee for the New River v. FERC, 373 F.3d 1323 (D.C. Cir. 2004) .........................................................................................14

Natural Resources Defense Council v. Houston, 146 F.3d 1118 (9th Cir. 1998) ............................................................................................13

Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994), cert. denied, 514 U.S. 1082 (1995) ....................................13

iii

Public Citizen Health Research Group, v. Auchter, 702 F.2d 1150 (D.C. Cir. 1983) .........................................................................................19

Rancho Viejo LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003) .........................................................................................11

Sierra Club v. EPA, 162 F.Supp.2d 406 (D. Md. 2001) .....................................................................................13

State of Idaho v. Interstate Commerce Commission, 35 F.3d 585 (D.C. Cir. 1994) .................................................................................12, 13, 14

TVA v. Hill, 437 U.S. 153 (1978).....................................................................................................11, 22

Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) .......................................................................................17, 18

Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985) ........................................................................................13, 20

U.S. v. Moon Lake Electric Associate, 45 F.Supp.2d 1070 (D. Colo. 1999)...................................................................................15

DOCKETED CASES

In re Forest Conservation Council, Inc. et al., No. 03-1034.............................................17

STATUTES

5 U.S.C. § 555 .............................................................................................................18, 22 5 U.S.C. § 706 ...................................................................................................................18 16 U.S.C. § 8(h) .................................................................................................................12 16 U.S.C. §701.............................................................................................................15, 16 16 U.S.C. § 703..................................................................................................................22 16 U.S.C. § 1531(b) ...........................................................................................................21 16 U.S.C. § 1531(c) ...........................................................................................................11 16 U.S.C. § 1536(a) .........................................................................................11, 12, 20, 22 16 U.S.C. § 1536(e) ...........................................................................................................12 28 U.S.C. § 2342..........................................................................................................17, 18 28 U.S.C. § 1651................................................................................................................17 42 U.S.C. § 4231..........................................................................................................21, 22 42 U.S.C. § 4332................................................................................................................14 47 U.S.C. § 303....................................................................................................................5 47 U.S.C. § 402............................................................................................................17, 18

iv

CODE OF FEDERAL REGULATIONS

40 C.F.R. § 1501.4(e).........................................................................................................14 40 C.F.R. § 1507.1 .............................................................................................................14 40 C.F.R. § 1507.3(a).........................................................................................................14 40 C.F.R. § 1507.3(b) ..........................................................................................................6 40 C.F.R. § 1508.13 ...........................................................................................................14 40 C.F.R. § 1508.18 ...........................................................................................................14 40 C.F.R. § 1508.4 ...............................................................................................................6 47 C.F.R. § 1.1301.........................................................................................................9, 15 47 C.F.R. § 1.1306...............................................................................................................6 47 C.F.R. § 1.1306(a)...........................................................................................................6 47 C.F.R. § 1.1306(c)...........................................................................................................6 47 C.F.R. § 1.1307...........................................................................................................7, 8 47 C.F.R. § 1.1307(a).......................................................................................................6, 7 47 C.F.R. § 1.1307(b) ..........................................................................................................6 47 C.F.R. § 1.1307(c).........................................................................................................21 47 C.F.R. § 1.1308...............................................................................................................8 47 C.F.R. § 17.22 .................................................................................................................5 47 C.F.R. § 17.4 ...................................................................................................................5 47 C.F.R. § 17.7 ...................................................................................................................5 50 C.F.R. § 402.01 .............................................................................................................13 50 C.F.R. § 402.02 .............................................................................................................12 50 C.F.R. § 402.08 .............................................................................................................13 50 C.F.R. § 402.12(a)...................................................................................................13, 21 50 C.F.R. § 402.12(c).........................................................................................................12

FEDERAL REGISTER

70 Fed. Reg. 372 (January 4, 2005) ...................................................................................15

v

vi

GLOSSARY OF ACRONYMS AND ABBREVIATIONS

ABC: American Bird Conservancy ESA: Endangered Species Act FCC: Federal Communications Commission MBTA: Migratory Bird Treaty Act NEPA: National Environmental Policy Act USFWS: United States Fish and Wildlife Service

PETITION FOR WRIT OF MANDAMUS Pursuant to Rule 21 of the Federal Rules of Appellate Procedure and Rule 21 of the Rules

of this Circuit, Petitioners American Bird Conservancy (“ABC”) and Forest Conservation

Council (“Council”) (“Petitioners”), respectfully request that this Court order the Federal

Communications Commission (“FCC”) to take final action on the Petitioners’ petition for

environmental compliance, filed with the FCC on August 26, 2002.

STATEMENT OF FACTS

Petitioners and their members are concerned about mortality of birds that strike

communication towers while the birds are in flight. In 2002, Petitioners filed an administrative

petition with the FCC, requesting the Commission to comply with applicable environmental

statutes in its communication tower licensing program. However, the FCC has failed to resolve

Petitioners’ requests or otherwise address Petitioners’ concerns. As further discussed below, the

FCC’s delay is unreasonable and harms the interest of Petitioners’ members in conserving birds.

I. FATAL COLLISIONS OF MIGRATORY BIRDS AT COMMUNICATION TOWERS

Fatal collisions of birds with communication towers have been well documented

throughout the United States since communication towers were first developed. See U.S. Fish

and Wildlife Service, Avian Mortality at Communication Towers: A Review of Recent

Literature, Research and Methodology (March, 2000) (Exhibit A at 4). It has been estimated that

communication towers in the United States could cause as many as fifty million bird deaths

every year. See U.S. Fish and Wildlife Service biologist Albert M. Manville, II, Ph.D, Comment

to FCC.1 The United States Fish and Wildlife Service (“USFWS”) Division of Migratory Bird

Management concluded on March 9, 2005, that “[t]he population impacts to migratory songbirds

1 Cited in Avatar Environmental, LLC, Notice of Inquiry Comment Review, Avian / Communication Tower Collisions (2004), Exhibit B at 3-23.

1

(and other avifauna) and impacts to their population status are frightening and biologically

significant.” See USFWS Reply Comments to FCC at 2 (Exhibit C at 2).

Documented mortalities at communication towers include mortality of two federally

designated endangered species (the Red Cockaded woodpecker and the Kirtland’s Warbler), two

federally designated Birds of Conservation Concern (the Bay Breasted Warbler and Blackpoll

Warbler), and over fifty species that are in decline or require special management attention

according to the USFWS’ Nongame Birds of Management Concern List or the Partners in Flight

Watch List. See id. at 3-64; and Shire, G.K. Brown and G. Winegrad, Communication Towers:

A Deadly Hazard to Birds (June, 2000) (Exhibit D at 3). In addition, several species killed by

communication towers are listed as Extremely High Priority on the Partners in Flight Watch List,

including the Swainson’s Warbler, Cerulean Warbler, Bachman’s Sparrow and Henslow’s

Sparrow. See Shire and Winegrad, Communication Towers, (Exhibit D at 3).2 Moreover, bird

mortality at communication towers contributes to a suite of factors that are causing the decline of

bird populations.

While communication tower collisions kill many bird species, neotropical songbirds are

most vulnerable, and thrushes, vireos and warblers are particularly at risk. See Manville, A. M.

II, The ABCs of Avoiding Bird Collisions at Communication Towers: The Next Steps

(December 2, 1999) (Exhibit F at 2). According to a recent detailed analysis of species-specific

mortality at communication towers, for the ten avian species killed most frequently at towers,

total annual mortality is estimated to be as high as 4.9 million individuals for each species,

2 The species assessments cited in this Petition, including endangered and threatened species lists and the other watch lists, apply several criteria to estimate overall vulnerability of the species to endangerment. Consequently, it is impossible and misleading to express the significance of mortality estimates for each species without a corresponding analysis of all factors affecting the survival of each affected bird species. For example, continued viability of a particular bird species may require a much higher total population for that species to avoid inevitable extinction than is required for other species. See Declaration of Philip Stouffer (Exhibit E at ¶ 10.d).

2

including two U.S. FWS Birds of Conservation Concern, Bay-breasted Warbler and Blackpoll

Warbler. See Travis Longcore, Ph.D, et al., Scientific Basis to Establish Policy Regulating

Communications Towers to Protect Migratory Birds3 (February 14, 2005) (Exhibit G at 5). The

most conservative estimates demonstrate that each of the top ten bird species documented killed

at communication towers lose between 85,000 and 490,000 individuals per year to tower

collisions. With respect to the two U.S. FWS Birds of Conservation Concern, the most

conservative estimates also show that approximately 225,000 individuals of the Bay-Breasted

Warbler and approximately 136,000 individuals of the Blackpoll Warbler are killed by towers

per year. Id. Thus, even at the lowest end of estimated mortality, nineteen USFWS Birds of

Conservation Concern each have over 10,000 fatalities at communication towers annually. Id. at

5-6.

These fatalities have the potential to adversely affect endangered and threatened bird

species in a critical way. For example, according to Longcore, et al., id.:

Discovery of any one specimen of an endangered species at a communications tower would be an indicator of a significant impact on the population of the species. If just one Kirtland’s Warbler had been part of the dataset that we analyzed in Table 1, then the interpretation would be that between approximately 20 and 200 individuals of this species are killed at communications towers each year. The total population size of Kirtland’s Warbler is only ~2,000 breeding individuals each year. Each breeding pair produces on average 2.2 fledglings, meaning that approximately 4,200 birds migrate each year. If our extrapolation is close, then communications towers would kill between 0.5% and 5% of the migrants of this species each year.

See Longcore, Ph.D, et al. (Exhibit G at 10) (internal citations omitted). Similarly, the

Longcore analysis showed that the “population effects from tower mortality could affect

viability of Red-Cockaded Woodpecker,” another federally ESA-designated endangered

3 This study was prepared for the Petitioners, Defenders of Wildlife and The Humane Society of the United States, and was included in comments submitted to the FCC by those organizations on February 14, 2005.

3

species. Based on just two recovered carcasses of the Red-Cockaded Woodpecker at

communication towers,4 the analysis estimated that 40 to 400 individuals are killed by

communication towers annually; in other words 0.4% to 4% of the total population. Id.

Simple tower design modifications can minimize bird mortality at communication

towers. For example, as early as 2000, studies showed that bird deaths could be minimized

through the use of visual daytime markers, minimized and down-shielded lighting, use of white

strobe lights rather than red pulsating lights, minimal or no use of guy wires, and co-location of

antennae on a single structure. See Shire, et al., 2000 (Exhibit D at 19). See also Manville, A.

M. II, The ABCs of Avoiding Bird Collisions (Exhibit F at 8-9). Based on this knowledge, other

federal agencies have recognized the need to modify tower design to avoid bird mortality. For

example, in 2000 the USFWS issued guidelines for siting and construction of communication

towers to avoid bird strikes. See USFWS, Jamie Rappaport Clark, Letter to Regional Directors

(September 14, 2000) (Exhibit H at 3). Similarly, the Federal Aviation Administration (“FAA”)

recently found the avian mortality problem sufficiently critical to issue an advisory circular to its

Regional Air Traffic Division Managers, advising them to consider using “medium intensity

white strobe lights for nighttime conspicuity” as “the preferred system over red obstruction

lighting systems.” See FAA, Program for Air Traffic Airspace Management Advisory Circular

(AC) 70/7460-1 (April 6, 2004) (Exhibit I). Nonetheless the FCC, the agency charged with

licensing and regulating communication towers for the benefit of the public interest, has not

incorporated these design modifications into its regulations.

Petitioners are concerned about the potentially significant adverse effects of FCC-

approved communication towers on bird mortality. Accordingly, the Petitioners filed a petition

4 See Shire and Winegrad, Communication Towers, (Exhibit D at 12) (documenting two Red-Cockaded Woodpeckers killed at one tower).

4

with the FCC on August 26, 2002, (“2002 Petition”) (Exhibit J), which targeted FCC’s national

communication tower registration policies. 5 The FCC has taken no action that plaintiffs are

aware of on the 2002 Petition, despite numerous requests by the Petitioners for a final decision,

including meetings with appropriate FCC staff and attorneys. Since the Petition was filed on

August 26, 2002, the FCC has allowed thousands of new towers to be erected in the Gulf Coast

region and nationally, many over 500 feet in height. Many do not meet the requirements of

applicable environmental statutes. See, e.g., USFWS, Accomplishment Reporting System

(“ARS”), available online at https://ars.fws.gov (September 2003) (Exhibit K) (reporting FCC’s

failure to comply with environmental statutory requirements in licensing 180 towers in

Michigan).

II. THE FCC’S TOWER LICENSING PROGRAM

The Communications Act of 1934 directed the FCC to grant licenses for communication

facilities “if public convenience, interest, or necessity will be served thereby,” 47 U.S.C. §

307(a), and to “[r]egulate the kind of [communication] apparatus to be used with respect to its

external effects. . . .” 47 U.S.C. § 303(e). Commission regulations require certain towers –

generally those over 200 feet in height – to obtain a license and register with the agency. 47

C.F.R. §§ 17.4 and 17.7. FCC regulations also require tower facilities to comply with the

Commission’s requirements for such external elements as lighting, painting and siting of antenna

structures. 47 C.F.R. § 17.22. The FCC is authorized to suspend a license if the licensee

violates any law that the FCC is authorized to administer. 47 U.S.C. § 303(m).

Currently there are tens of thousands of communication towers in the U.S. that are

required to be registered with the FCC. For example, Texas, with much critical habitat for

5 Petitioners also filed a separate petition relating to communication towers in Hawaii, and have sent a 60-day notice of intent to sue to the FCC concerning that petition. See ABC and Forest Conservation Council Petition to FCC, April 9, 2004 (“2004 Petition”) (Exhibit L).

5

numerous migratory bird species, has at least 10,000 existing or planned and permitted towers

registered by the FCC. See FCC Antenna Structure Registration Search, 6 available online at

http://wireless.fcc.gov/antenna/ (February 16, 2005) (Exhibit M). According to the FCC’s

database, today there are nearly 23,000 existing or planned and permitted towers in the Gulf

Coast region that are registered by the FCC, including Texas, Louisiana, Mississippi, Alabama

and Florida, along with a constant flow of applications for new towers. Id.

The FCC’s Chairman has acknowledged that the Commission’s responsibilities under

environmental statutes “most prominently come into play regarding the construction of

communications towers and their impact on the environment and historic sites . . . .” See

Statement by Former FCC Chairman Michael K. Powell (May 1, 2003) (Exhibit N at 1-2).

Notwithstanding this fact, the FCC has “categorically excluded from environmental processing”

all but a few types of antenna structures. See 47 C.F.R. § 1.1306.7 Significantly, however, FCC

regulations do not exclude individual communication towers that may affect ESA-listed

threatened or endangered species or designated critical habitats, or that are likely to jeopardize

the continued existence of any proposed endangered or threatened species, or that are likely to

result in the destruction or adverse modification of proposed critical habitats.8 To the contrary,

the FCC’s regulations declare that “Commission actions with respect to the [foregoing] types of

6 Online search for freestanding or guyed towers, poles and “antenna tower arrays” registered with FCC. 7 NEPA regulations permit federal agencies to create “categorical exclusions,” categories of actions that “do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect” in procedures adopted by the federal agency. See 40 C.F.R. §§ 1507.3(b)(2)(ii) and 1508.4. 8 In addition, the following types of towers require preparation of an EA prior to licensing under FCC regulations: 1) towers to be located in an officially designated wilderness area or wildlife preserve; 2) towers that may affect places that are listed, or are eligible for listing, in the National Register of Historic Places; 3) towers that may affect Indian religious sites; 4) towers that are to be located in a flood plain; 5) towers whose construction will involve significant change in surface features (e.g., wetland fill, deforestation or water diversion) (See 47 C.F.R. §§ 1.1306(a) and 1.1307(a)(1) to (7); 6) towers to be equipped with high intensity white lights and located in residential neighborhoods (See 47 C.F.R. §§ 1306(b) and 1.1307(a)(8)); and 7) towers that result in human exposure to radiofrequency radiation in excess of the applicable safety standards (See 47 C.F.R. §§ 1.1306(c) and 1.1307(b)).

6

facilities may significantly affect the environment and thus require the preparation of EAs by the

applicant . . . and may require further Commission environmental processing.” 47 C.F.R. §

1.1307(a) (citations omitted). Tellingly, the checklist under 47 C.F.R. § 1.1307 does not mention

tower impacts on migratory birds – and the FCC has repeatedly refused to add migratory birds to

the list of environmental concerns that would trigger an EA by tower applicants.

The FCC has designated each of its licensees, applicants, tower companies and their

representatives to act as non-federal representatives for purposes of consultation and preparation

of a biological assessment under Section 7 of the ESA. See FCC Response to Petition for Writ

of Mandamus (April 30, 2003) (Exhibit O at 6). The FCC’s regulations provide that “[w]ith

respect to actions specified under §1.1307 (a)(3) and (a)(4),” i.e. those actions that require

preparation of an EA, “the Commission shall solicit and consider the comments of the

Department of Interior. . . in accordance with their established procedures. See Interagency

Cooperation—Endangered Species Act of 1973, as amended, 50 CFR part 402.” However, as

described below, the FCC has eviscerated its EA “requirement” by allowing tower applicants to

avoid preparation of an EA simply by declaring, without supporting documentation, that the

proposed tower does not create any significant environmental effect. Thus, if a licensee deems

the EA requirement inapplicable to its proposed tower, the FCC conducts no further inquiry into

its own obligations under the applicable environmental statutes. Moreover, as numerous

challenges by the Petitioners to individual licensing decisions have demonstrated, in many cases

when the licensees did prepare an EA, that EA was inadequate.

Therefore, as it is currently implemented, the FCC’s tower licensing program fails to

ensure that towers that may have a significant environmental impact are preceded by an EA and,

if appropriate, an environmental impact statement (“EIS”), in compliance with FCC regulations.

For example, the FCC tells tower license applicants that “[i]f, after consulting the NEPA rules, a

7

wireless service provider determines that its proposed service facility project does not fall under

any of the listed categories,” then “the licensee may proceed with the project without providing

any documentation to the [Wireless Communications] Bureau.” See FCC, Guidance on

Compliance with FCC’s Rules Implementing NEPA (2004) (“FCC NEPA Guidance”) (Exhibit P

at 2) (emphasis added and in original). Under this policy, the FCC allows tower permit

applicants to avoid the requirement to prepare an EA simply by asserting – without proof – that

the proposed tower has no significant environmental effect. Tower license applicants are

required only to answer the following question, buried at the end of the FCC’s Form 854,

Application for Antenna Structure Registration:

( ) Yes No: Would a Commission grant of Authorization for this location be an action, which may have a significant environmental effect? See Section 1.1307 of 47 CFR. If ‘Yes’, submit an environmental assessment as required by 47 CFR, Sections 1.1308 and 1.1311.

The form does not require documentation to support a “No” response, and the FCC has neither a

procedure nor staff biologists to conduct independent review of that assertion. Consequently, the

FCC conducts no real review. See USFWS, Jamie Rappaport Clark, Letter to FCC Chairman

William Kennard (November 2, 1999) (Exhibit Q at 1). This policy allows tower applicants to

proceed to approval without evaluating the proposed tower’s environmental and species impact.

Id. All they need do is circle “No” on the form. See FCC NEPA Guidance Exhibit P at 2.

Consequently, many towers are licensed and constructed in violation of law. See, e.g. Exhibit K.

III. THE FCC’S FAILURE TO COMPLY WITH REQUESTS FROM USFWS TO ADDRESS AVIAN MORTALITY

According to the USFWS, the FCC has known since at least 1996 – nearly a decade ago –

that, as a result of its policies, “substantial losses of migratory birds are not being accounted for

in FCC’s permit and NEPA decision-making process.” See Exhibit Q at 1 (stating that USFWS

and FCC had engaged in discussions “for the past 3 years” concerning the impact of FCC’s

8

tower licensing program on migratory birds). In 1999 the USFWS formally requested the FCC

to complete a programmatic environmental impact statement (“PEIS”) “to delineate the true

impacts of tower construction” nationwide and to “identify ways to reduce those impacts by

incorporating measures in the applicant’s permits to minimize potential losses to migratory

birds.” Id. at 2. Specifically, USFWS was concerned “with the way communication towers are

planned, sited, and constructed” around the country, “FCC’s regulations in 47 C.F.R. 1.1301-

1.1319, and how those regulations are being interpreted by FCC personnel.” Id.at 1. Moreover,

the USFWS concluded that the Commission’s policy of allowing tower license applicants to

determine whether to provide environmental information ensured “almost no environmental

oversight by the FCC.” Id. at 2.

The FCC took no action in response to USFWS’s requests. Instead, the FCC responded

that “there is very little study and research, and thus no consensus within the scientific

community, on the issue of what impact communication towers have on the migratory bird

population and what, if any, mitigation measures would be effective.” FCC, Letter from William

Kennard to Jamie Rappaport Clark (March 21, 2000) (Exhibit R at 1). The FCC further stated

that “[u]ntil the necessary research and study is undertaken. . . , we do not believe it appropriate

for the FCC to undertake the expansive, generic EIS effort [USFWS] describe[s].” Id. On

November 20, 2000, the USFWS again wrote to the FCC (Exhibit S), attaching the USFWS

Guidance Document on the Siting, Construction, Operation and Decommissioning of

Communications Towers Guidelines, and urging the Chairman to “. . . make the interim

guidelines available to all applicants requesting Federal communication licenses, in order to

distribute the information more widely among the....industries.” Id. at 1. The Director noted that

the Guidelines represent “the best measures available for avoiding fatal bird collisions,” and

“widespread use of these guidelines will significantly reduce the loss of migratory birds at

9

towers.” Id. at 1. The FCC has steadfastly refused to incorporate any of the guidelines into its

tower regulations, despite repeated entreaties to do so. Today, more than eight years since the

USFWS first asked the FCC to address bird strikes at communication towers, the FCC still has

not acted or made a commitment to mitigate bird mortality. Moreover, the USFWS’ requests

preceded the Petitioners’ requests by more than 5 years.

The impact of FCC’s delay is substantial. To illustrate, in 2001 USFWS learned that the

FCC had permitted Motorola to complete construction of a network of 180 communication

towers in Michigan without complying with the ESA or NEPA and without considering USFWS

guidelines under the MBTA for protecting migratory birds. See USFWS, ARS (Exhibit K). One

hundred and twenty of these towers are located in Michigan’s Lower Peninsula, a location that

harbors the only surviving population of endangered Kirtland’s Warblers in the U.S. 9 After two

years of negotiations, the FCC, USFWS and the State of Michigan reached an agreement

providing for research and consultation on the future operation and maintenance of towers only

in that particular tower network. Id. This is but one example of the continuing harm to

migratory birds that results from the FCC’s delay in addressing Petitioners’ concerns.

The FCC’s failure to act has had a grave impact on birds. In the spring of 2004,

researchers monitoring only 23 of the towers in the Michigan network found 194 birds likely

killed by tower collisions during a period of just 20 days. See Joelle Gehring, Ph.D., Avian

Collision Study Plan for the Michigan Public Safety Communications System (MPSCS): Spring

2004 Summary, 2 (July 20, 2004) (Exhibit U at 2).10 During 20 days in the fall of 2004,

researchers found an additional 153 birds likely killed by tower collisions. See Joelle Gehring,

9 See USFWS, Endangered Species Fact Sheet on Kirtland’s Warbler, available online at http://www.fws.gov/midwest/Endangered/birds/Kirtland/kiwa-facts.htm (Exhibit T). 10 All of the towers in this study are 116-146 meters (380-480 feet) tall, and none use lighting or other measures designed to mitigate avian mortality. See Exhibit U at 1. See also p. 4 of this petition (discussing tower design and lighting that is safer for migrating birds).

10

Ph.D., Fall 2004 Summary (November 9, 2004) (Exhibit V at 2). These mortalities included at

least 20 Blackpoll warblers, which are listed as Birds of Conservation Concern by the USFWS.

Id. at 4. These data include only the numbers of carcasses found, and do not include an

extrapolation for searcher efficiency or predator/scavenger removal. Thus, according to the

researchers’ own estimates, actual birds killed could be up to 3.41 times the number of birds

found. Id. at 5.

IV. STATUTORY BACKGROUND

The Endangered Species Act (“ESA”). Courts have recognized that “the plain intent of

Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction,

whatever the cost.” See Defenders of Wildlife v. Babbitt, 130 F.Supp.2d 121, 124 (D.D.C. 2001).

The ESA protects endangered and threatened species by mandating that “all Federal departments

and agencies shall seek to conserve endangered species and threatened species and shall utilize

their authorities in furtherance of the purposes of” the ESA. See 16 U.S.C. § 1531(c)(1); Rancho

Viejo LLC v. Norton, 323 F.3d 1062, 1064 (D.C. Cir. 2003). This explicit mandate “admits of no

exception.” See TVA v. Hill, 437 U.S. 153, 173 (1978).

Moreover, “the ESA constituted an explicit congressional decision to require agencies to

afford first priority to the declared national policy of saving endangered species ... [and] reveals a

conscious decision by Congress to give endangered species priority over the ‘primary missions’

of federal agencies.” Id. at 184 (internal citations omitted). The ESA prohibits all persons,

including federal agencies, from “taking” endangered species, and all federal agencies are

explicitly required to “seek to conserve endangered species and threatened species,” see 16

U.S.C. § 1531(c)(1); and to “utilize their authorities in furtherance of the purposes of [the ESA]

by carrying out programs for the conservation of endangered species and threatened species.”

See 16 U.S.C. § 1536(a)(1).

11

Section 7 of the ESA requires all federal agencies to ensure that any action authorized,

funded, or carried out by the agency is not likely to jeopardize the continued existence of any

endangered or threatened species, or result in the destruction or adverse modification of critical

habitat. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.02. This requires each federal agency to ensure

that its granting of licenses and permits will not jeopardize the continued existence of

endangered species. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, et

al., 515 U.S. 687, 692 (1995). Section 7 also established the Endangered Species Committee,

charged with reviewing all applications for exemptions from the requirements of the ESA. See

16 U.S.C. § 1536(e). Congress authorized the Committee to grant an exemption from the

requirements of Section 7 only if the applicant met specific enumerated requirements including,

inter alia, that there are “no reasonable and prudent alternatives to the agency action” and “the

benefits of such action clearly outweigh the benefits of alternative courses” that do not

jeopardize endangered species. See 16 U.S.C. §§ 8(h)(1)(A)(i) and (ii). There are no exemptions

from the responsibilities of federal agencies under Section 7 except those approved by the

Endangered Species Committee. See id.

To carry out its duty under Section 7 of the ESA, each federal agency must, “with respect

to any agency action,” ask the Secretary of the Interior whether any “species which is listed or

proposed to be listed” as endangered or threatened is present in the area of the proposed action.

See 50 C.F.R. § 402.12(c); State of Idaho v. Interstate Commerce Comm’n, 35 F.3d 585, 596

(D.C. Cir. 1994). If the Secretary (represented by the USFWS in matters of endangered and

threatened avian species) informs the action agency that endangered or threatened species “may

be present in the action area,” the action agency must prepare a biological assessment (“BA”) to

determine whether endangered species or critical habitat are “likely to be adversely affected by

12

the action” and to determine “whether formal consultation or a conference is necessary.” See id.;

50 C.F.R. § 402.12(a).

The only exception to this stringent requirement is when the action agency and the Secretary, either after the agency prepares a biological assessment or as the result of informal consultation, agree that the agency action is not likely to affect any listed species or critical habitat. This concurrence must be in writing.

See Sierra Club v. EPA, 162 F. Supp. 2d 406, 422 (D. Md. 2001) (emphasis in original, citations

omitted).11

ESA regulations allow agencies to designate a non-federal representative to fulfill certain

specific agency obligations under the ESA, namely “to conduct informal consultation or prepare

a biological assessment” for a particular agency action. See 50 C.F.R. § 402.08. However, even

where an agency designates non-federal representatives to conduct consultation or prepare a BA,

“the ultimate responsibility for compliance with section 7 remains with the Federal agency.” Id.

Moreover, the ESA does not permit agencies to exclude any category of agency action from

compliance with the agency’s Section 7 duties. See 50 C.F.R. § 402.01 et seq.

The National Environmental Policy Act (“NEPA”). NEPA makes environmental

protection a mandate of every federal agency. See State of Idaho, et al. v. ICC, 35 F.3d 585, 595

(D.C. Cir. 1994). Pursuant to Section 102 of NEPA, every federal agency is required to compile

a detailed statement (“environmental impact statement” or “EIS”) discussing the environmental

impact of all “actions with effects that may be major and which are potentially subject to Federal

11 The court in Sierra Club v. EPA held that Maryland violated the ESA by approving water quality revisions without preparing a BA. See also Hawksbill Sea Turtle v. Federal Emergency Mgmt. Agency, 11 F.Supp.2d 529, 545 (D. V.I. 1998) (the only valid alternative to preparing a BA is informal consultation). It is settled that agencies cannot lawfully refuse to engage in consultation when the agency is aware that its actions may affect protected species. See Natural Resources Defense Council v, Houston, 146 F.3d 1118 at 1127 (9th Cir. 1998) (Bureau of Reclamation violated the ESA by forgoing consultation prior to renewing contracts to supply water from an existing dam); Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1054 n. 8 (9th Cir. 1994), cert. denied, 514 U.S. 1082 (1995) (Forest Service’s refusal to consult with the USFWS regarding its criteria for harvesting resources within the habitat of protected salmon violated the ESA); Florida Key Deer v. Stickney, 864 F.Supp. 1222, 1228 (S.D. Fla. 1994) (FEMA violated ESA by refusing to consult regarding the impact of its National Flood Insurance Program upon new development within the habitat of the endangered Florida Key Deer).

13

control and responsibility.” See Id.; 42 U.S.C. § 4332 and 40 C.F.R. § 1508.18. Furthermore, it

is the role of the courts to “ensure that the agency has adequately considered and disclosed the

environmental impact of its actions and that its decision is not arbitrary or capricious.” Nat’l

Comm. for the New River v. FERC, 373 F.3d 1323, 1327 (D.C. Cir. 2004).

To comply with Section 102 of NEPA, federal agencies must prepare an EIS for all new

and continuing activities, projects and programs entirely or partly financed, assisted, conducted,

regulated, or approved by the agency. See State of Idaho, et al. v. ICC, 35 F.3d 585, 595 (D.C.

Cir. 1994). Council of Environmental Quality (“CEQ”) regulations enacted to implement NEPA

allow an agency to prepare a more limited Environmental Assessment (“EA”) in certain

circumstances where the proposed action does not clearly require preparation of a full EIS. See

40 C.F.R. §§ 1507.1 and 1507.3(a)(2). Whenever an agency decides, as a result of its analysis

under an EA, that no EIS is required it must issue a “finding of no significant impact” (“FONSI”)

presenting the reasons why an action will not have a significant impact on the human

environment. See 40 C.F.R. §§ 1501.4(e) and 1508.13.

In the licensing context, agencies cannot delegate their responsibilities under NEPA

Section 102 to license applicants or defer to the license applicant’s judgment on environmental

matters. See State of Idaho, et al. v. ICC, 35 F.3d 585, 595-96 (D.C. Cir. 1994). There the

agency “deferred to [the] scrutiny of others” by granting licenses subject to conditions that

required the licensee to consult with various agencies about environmental impacts. Id. As a

result only the licensee was in a position to assess the environmental impact of its activities. Id.

This Court found that the agency’s “attempt to rely entirely on the environmental judgments of

other agencies” and of the regulated entities was a “blatant departure from NEPA.” Id.

14

The Migratory Bird Treaty Act (“MBTA”). The MBTA is aimed at preserving and

restoring migratory birds in the United States12, a goal this Court has recognized as “a national

interest of very nearly the first magnitude.” Humane Society v. Glickman, 217 F.3d 882, 883

(D.C. Cir. 2000) (quoting Justice Holmes, Missouri v. Holland, 252 U.S. 416, 435 (1920)); 16

U.S.C. § 701 et seq. The Act imposes an absolute prohibition on any “taking” of migratory

birds, unless authorized by a permit. Id. The MBTA applies to federal agencies including the

FCC, and killing birds with communication towers violates the MBTA even if the killing is

unintentional and the deaths are inadvertent. Id.; U.S. v. Moon Lake Electric Assoc., 45

F.Supp.2d 1070 (D. Colo. 1999). However, notwithstanding the plain language of the MBTA,

the FCC has not obtained a permit to “take” migratory birds under the Act, nor do its regulations

require tower license applicants to obtain such a permit. See 47 C.F.R. § 1.1301 et seq.

V. THE FCC’S FAILURE TO RESPOND TO PETITIONERS’ REQUESTS TO MITIGATE BIRD MORTALITY CAUSED BY COMMUNICATION TOWERS

For more than five years, Petitioners have made extensive efforts to obtain the relief

requested in this petition.13 Beginning in 2001, the Petitioners filed challenges to individual

tower licensing decisions in the Gulf Coast and nationally, explaining to the FCC that in each of

the applications that were accompanied by EAs, the EAs failed to address the impact of the

towers on migratory birds and therefore did not support issuance of a “FONSI”. See Petition for

Writ of Mandamus (February 13, 2003) (“2003 Mandamus Petition”) (Exhibit W at 14-15). The

12 The MBTA covers 83 percent of all birds native to the U.S., with all species in the lower 48 States protected except the house sparrow, rock pigeon, European starling, and non-migratory game birds like pheasants, gray partridge, and sage grouse. See U.S. Geological Survey, Possession of Migratory Birds, Including Feathers, Nests, and Eggs at: http://www.npwrc.usgs.gov/info/faqs/birds/feathers.htm. It does not cover birds that are not native to the U.S. See 70 Fed. Reg. 372.

13 In addition to their formal efforts with the FCC, Petitioners have made numerous informal efforts to persuade the agency to minimize avian mortality in the agency’s tower registration program. Additionally, Petitioner ABC has participated in USFWS’ Communication Tower Working Group (CTWG) since 2000 to determine the best ways to construct and operate towers to prevent bird strikes, and has repeatedly requested (without success) that FCC incorporate the USFWS Guidelines and research presented to the CTWG into its tower licensing program.

15

FCC dismissed the first twenty-nine of these petitions in one ruling, stating that the Petitioners

did not have standing to assert their claims, and thereby avoiding the Petitioners’ NEPA, ESA,

and MBTA claims. Id.

When the FCC refused to address the problem of tower mortalities either locally or

nationwide, Petitioners filed a petition in August 2002 pursuant to FCC’s NEPA procedures,

requesting the Commission to comply with applicable environmental statutes throughout the

implementation of its licensing program. See 2002 Petition (Exhibit J).14 That petition asks the

FCC, inter alia, to 1) comply with NEPA, 42 U.S.C. § 4321 et seq., by preparing a programmatic

environmental impact statement (PEIS) to evaluate, analyze and mitigate the effects of

communication tower registrations on migratory birds and other protected resources; 2) comply

with Section 7 of the ESA, 16 U.S.C. § 1531 et seq., by, where appropriate, initiating formal

consultation with the USFWS on the effects of 5,797 antenna structure registrations on

threatened and endangered species in the Gulf Coast region; 3) comply with the MBTA, 16

U.S.C. §701, by taking steps to reduce or eliminate “takes” of migratory birds; and 4) halt the

approval of new individual communication towers that pose a risk to birds until the Commission

has complied with the ESA, NEPA and the MBTA. Id. at 17 and 19-20. The FCC has taken no

action that plaintiffs are aware of on the 2002 Petition, nor has the agency committed to

resolving the Petition within a reasonable time.

On February 13, 2003, ABC and the Council filed suit before this Court requesting a writ

of mandamus ordering the FCC to act on their petition. See 2003 Mandamus Petition (Exhibit

W). In response to the 2003 Mandamus Petition, the FCC filed an opposition with this Court

that denied the extent of the harm caused by tower collisions and claimed that the agency had

14 Petitioners also filed a separate petition relating to communication towers in Hawaii, and have sent a 60-day notice of intent to sue to the FCC concerning that petition. See ABC and Forest Conservation Council Petition to FCC, April 9, 2004 (“2004 Petition”) (Exhibit L).

16

“more substantial and pressing” priorities, while stating that the Commission was “moving

expeditiously” to address the problem of bird kills at communication towers. See Response of

FCC to Petition for Writ of Mandamus (Exhibit O at 20). On July 2, 2003, this Court ruled that

the FCC’s continuing delay was not yet so egregious to require the writ. See In re Forest

Conservation Council, Inc. et al., No. 03-1034 (Exhibit X). Importantly, this Court denied the

writ petition “without prejudice to renewal in the event of significant additional delay.” Id. This

put the FCC on notice that it needed to act in a reasonable time on the petition. It has failed to do

so. Today – after one and one half years of further delay – FCC still has not resolved the

Petitioners’ August 2002 Petition.

The FCC’s studied refusal to act indicates that it will continue avoiding and delaying its

legal obligations until it is compelled by this Court to address the Petitioners’ concerns about

bird mortality occasioned by its tower licensing program. Moreover, the FCC’s refusal to take

final action on the 2002 Petition prevents the Petitioners from obtaining a final resolution of their

requests and, if necessary, judicial review of the FCC’s action. The Petitioners therefore request

this court to order the FCC to take final administrative action on their August 2002 petition

without further delay.

JURISDICTION

The Court has jurisdiction over this Petition to preserve its future right of review of

agency actions under the All Writs Act, 28 U.S.C. § 1651(a), and the statute governing judicial

review of the FCC’s final agency orders, 28 U.S.C. § 2342(1) and 47 U.S.C. § 402(a). See

Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 75, 79 (D.C. Cir. 1984)

(“TRAC”).

It has long been recognized by this Court that “where a statute commits review of agency

action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court’s future

17

jurisdiction is subject to the exclusive review of the Court of Appeals.” TRAC at 75 (emphasis in

original). This Court is vested with exclusive jurisdiction over review of final FCC orders under

28 U.S.C. § 2342(1) and 47 U.S.C. § 402(a). The FCC’s failure to take final agency action to

resolve Petitioners’ requests simply defeats this Court’s statutory obligation to review

Petitioners’ contentions on the merits. This Court therefore has jurisdiction to resolve the

Petitioners’ claims of unreasonable delay and to compel the FCC to take final agency action on

the issue of migratory bird mortality at communication towers. Id. at 77.

ARGUMENT

I. INTRODUCTION

The Administrative Procedure Act requires agencies to conclude business “within a

reasonable time,” and the courts are instructed to “compel agency action unlawfully withheld or

unreasonably delayed.” See 5 U.S.C. §§ 555(b) and 706(1). See also In re Center for Auto

Safety et al., 793 F.2d 1346, 1353-54 (D.C. Cir. 1986) (compelling unreasonably delayed agency

action to issue fuel efficiency standards requested by petitioners). Despite Petitioners’ numerous

informal and formal administrative requests to the FCC over the course of the past five years to

comply with applicable environmental statutes in the agency’s tower licensing program, and

despite the previous petition to this Court for a writ of mandamus, the FCC has failed to grant or

otherwise resolve the Petitioners’ requests for relief.

This Court has identified six factors that are relevant to determining whether mandamus

should issue for unreasonable delay:

(1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;

18

and (5) the court should also take into account the nature and extent of the interests prejudiced by delay and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is “unreasonably delayed.”

TRAC, 750 F.2d 70, 77 (D.C. Cir., 1984) (internal quotes and citations omitted; emphasis added).

These factors strongly support a writ of mandamus in this case.

II. THE FCC’S DELAY EXCEEDS THE RULE OF REASON

This Court recently held that, although “[t]here is no per se rule as to how long is too

long to wait for agency action,” “a reasonable time for agency action is typically counted in

weeks or months, not years.” In re American Rivers, 372 F.3d 413, 419 (D.C. Cir. 2004)

(internal citations omitted; emphasis added). In American Rivers, the Court found the Federal

Energy Regulatory Commission’s six-year delay in responding to a petition for consultation

under the Endangered Species Act was “nothing less than egregious.” Id. The Court further

noted that it previously had found delays of three, four and five years “unreasonable.” Id. at 419

n.12 (citing Airline Pilots Ass’n v. Civil Aeronautics Bd., 750 F.2d 81, 86 (D.C. Cir. 1984) (five-

year delay in responding to application for adjudication was unreasonable); Public Citizen

Health Research Group, v. Auchter, 702 F.2d 1150, 1157 (D.C. Cir. 1983) (three-year delay in

responding to petition for ethylene oxide standards was unreasonable); and MCI

Telecommunications Corp. v. FCC, 627 F.2d 322, 324-25 (D.C.Cir.1980) (four-year delay in

responding to petition for reasonability determination was unreasonable). Here, the FCC has

delayed resolving Petitioners’ informal requests for nearly five years, and has delayed for over

two and one half (2 ½) years in resolving Petitioners’ formal administrative requests for relief.

Moreover, the FCC has failed to act for more than one and one half (1 ½) years following this

Court’s ruling on July 2, 2003, that left open the opportunity for petitioners to renew their earlier

petition for writ of mandamus in the event of “significant additional delay” by the FCC. See In

19

re Forest Conservation Council, No. 03-1034. (D.C. Cir. 2003) (Exhibit X). The FCC’s failure

to act has resulted in the killing of as many as 50 million birds per year at communication

towers, and these deaths continue to occur as the FCC continues its refusal to act to prevent these

fatalities.

A. Timing Provisions in the ESA, NEPA and the MBTA Demonstrate that The FCC’s Delay is Unreasonable.

NEPA and the ESA require federal agencies to address the environmental impacts of

their actions before the negative effects occur, even in circumstances where there remains some

uncertainty concerning the extent of those effects. Indeed, the plain language of the ESA

requires that a biological assessment be prepared at a stage where there is still uncertainty, when

any listed species “may be present” in the proposed project area, to determine whether “such

action will likely affect such species.” 16 U.S.C. § 1536(a)(3) (emphasis added). To illustrate,

the Federal Emergency Management Agency (“FEMA”) was ordered to consult with the

USFWS under Section 7 of the ESA, after USFWS informed FEMA that its National Flood

Insurance Program encouraged new development within the remaining habitat of the endangered

Florida Key Deer, and therefore that its program might adversely affect the Key Deer. See

Florida Key Deer v. Stickney, 864 F.Supp. 1222, 1238 (S.D. Fla. 1994). The court ordered

consultation even though the alleged impacts of new development upon endangered Florida Key

deer had not been formally established. Id. Similarly, the Ninth Circuit ordered the Forest

Service to comply with the ESA by preparing a biological assessment for proposed road and

timber sales within an area identified by USFWS as habitat of the endangered Rocky Mountain

Gray Wolf. See Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985). The court also ordered

the Service to comply with NEPA by analyzing the combined environmental impacts of the road

and timber sales, even though the alleged effects of the proposed sales had not been formally

20

established. Id. at 759, 763 (alleging that agency actions were “likely to affect” the Rocky

Mountain Gray Wolf).

The statutory purpose and language of the ESA and NEPA further demonstrate the FCC’s

affirmative duty to address any potential adverse effects before they occur. For example,

NEPA’s purpose is “to promote efforts which will prevent or eliminate damage to the

environment and biosphere.” 42 U.S.C. § 4231 (emphasis added). Similarly, the ESA expresses

a policy and purpose that “all Federal departments and agencies shall seek to conserve

endangered species and threatened species” and “the ecosystems upon which endangered species

and threatened species depend” 16 U.S.C. § 1531(b) and (c) (emphasis added). FCC’s refusal to

evaluate the “potential effects” of its actions, and to “prevent or eliminate damage” resulting

from such action, therefore violates both the spirit and the letter of the ESA and NEPA. See 50

C.F.R. § 402.12(a); and 42 U.S.C. § 4321.

In the previous mandamus proceeding, the Commission attempted to justify its delay by

stating that “the agency faces no statutory deadline.” See Response of the FCC to Petition for

Writ of Mandamus (Exhibit O at 2). However, the FCC should not be allowed to evade its legal

obligation to resolve the 2002 Petition simply by pointing to a claimed lack of statutory

deadlines for acting on a petitioner’s requests. As an initial matter, the FCC’s procedural

regulations contain an implicit deadline for the agency to take action on petitions for

environmental compliance under 47 C.F.R. § 1.1307(c). Under that provision, the FCC must

issue a determination on the petition in sufficient time for that determination to “serve as the

basis for the [FCC’s] determination to proceed with or terminate environmental processing.” Id.

The FCC’s refusal to take final action on the 2002 Petition has made it impossible for that

determination to “serve as a basis” for deciding whether an EA should have been prepared for

license applications the FCC has granted during the pendency of the petition. Because tower

21

applications challenged in the 2002 Petition continue to be approved without EAs, this problem

is ongoing. Allowing the FCC to delay indefinitely simply because it alleges that it is not subject

to a fixed statutory deadline would defeat the requirement of the Administrative Procedure Act

that agencies shall conclude the matters before it “within a reasonable time.” 5 U.S.C. § 555(b).

Moreover, allowing the FCC to delay final action on the 2002 Petition for environmental

compliance would frustrate the Congressional mandate that federal agencies act expeditiously to

protect the environment and wildlife under the ESA, NEPA and the MBTA. Under those

statutes, agencies must take action in sufficient time to “prevent or eliminate” environmental

damage under NEPA, 42 U.S.C. § 4231; before agency action that “will likely affect

[endangered] species” under the ESA, 16 U.S.C. § 1536(a)(3); and before any migratory bird is

“taken” or killed as defined under the MBTA, 16 U.S.C. § 703. Here, where the lives of millions

of individual birds are threatened and the continued viability of several threatened and

endangered bird species and other migratory birds are potentially are at stake, FCC’s delay is

patently unreasonable.

B. The FCC’s Delay Is Unreasonable Because It Defeats Congressional Intent.

In determining whether a particular delay is unreasonable, a court “must also estimate the

extent to which [the] delay may be undermining the statutory scheme, either by frustrating the

statutory goal or by creating a situation in which the agency is ‘losing its ability to effectively

regulate at all.’” See Cutler v. Hayes, 818 F.2d 879, 897-98 (D.C. Cir. 1987). Congress intended

federal agencies to use their full regulatory authority to prevent harm to the environment and

wildlife. Indeed, Congress “carefully omitted all of the reservations” that limited agency

obligations under the ESA in terms of practicality or the primary purposes of the respective

agencies. See TVA v. Hill, 437 U.S. at 182. The FCC’s refusal to take final action on the

22

Petitioners’ requests without a valid basis for such refusal frustrates Congress’ intent, and is

therefore manifestly unreasonable.

C. The FCC’s Delay Is Not Excused by the Commission’s Purportedly “Imminent Plans” to Devote More Time to the Problem of Bird Mortality.

The FCC’s previously claimed that the agency is “moving expeditiously” to resolve the

Petitioners’ requests. See Response of FCC to Petition for Writ of Mandamus (Exhibit O at 20)

(citing “imminent plans to devote more institutional time and effort to dangers communication

towers may pose to migratory birds”) (emphasis added). However, the FCC’s “plans” do not

excuse its unreasonable delay in complying with the agency’s present responsibilities under

environmental statutes. At a minimum, the FCC has a present duty under the APA and its own

regulations to take final action on the Petitioners’ requests for environmental compliance.

The FCC’s claim that it is moving expeditiously is belied by the agency’s dilatory

actions. Instead of fulfilling its already overdue responsibilities, FCC issued a public “Notice of

Inquiry” in 2003, to “gather comment and information” on the impact of communications towers

upon migratory birds and to solicit public comment on “whether such research would support

changes within the structure of [FCC’s] current rules and processes….” See FCC, Notice of

Inquiry (August 8, 2003) (Exhibit Y). Predictably, this “inquiry” provided the regulated industry

an opportunity to downplay bird deaths at communication towers.15 However, as discussed

above, the FCC had no discretion to decide whether to comply with applicable environmental

statutes once it had been informed by the USFWS that its action was impacting migratory birds.

Consequently, the FCC’s Notice of Inquiry contravenes the strict procedural requirements of

15 The FCC has employed this dilatory tactic before. For example, when the National Audubon Society requested the FCC to prepare an EIS in connection with its proposed rulemaking on digital television towers, the FCC issued a request for comments on the Society’s request. See FCC, Public Notice (March 6, 1998) (Exhibit Z).

23

those Acts. Moreover, it violates the agency’s substantive obligation to act expeditiously in

accordance with the ESA, NEPA and the MBTA.

The FCC’s delay is further unreasonable because it has not committed to taking final

action to resolve Petitioners’ requests even after the agency concludes its prolonged “inquiry,”

which is still not yet concluded. The inquiry period closed over a year ago, yet FCC has taken

no final action on Petitioners’ requests for environmental compliance in the FCC’s licensing

policies. Instead, in May 2004 the FCC commissioned consultants to prepare a review of the

public comments. 16 See Exhibit B. The consultants concluded that “[o]verall there

is…sufficient documented evidence of avian mortality by communications towers and that the

construction and operation of tall structures will likely result in the risk of bird collisions and

possible mortalities.” See Exhibit B at 3-19. Nevertheless, the consultants recommended no

immediate action by the FCC to address the deficiencies in its tower registration policies to

mitigate the bird mortalities presently being caused by tower collisions. Instead, the FCC’s

consultants recommended, for example, that the agency “provide guidance on the need” for

further research and “encourage the development” of baseline information about bird

populations. See Exhibit B at 5-1 to 5-13.

After the consultants completed their review of the public comments, the FCC requested

public comment on the Comment Review itself, adding another layer of unreasonable delay to

already overdue action. See FCC, Public Notice DA 04-3891 (December 14, 2004) (Exhibit

AA).17 Meanwhile, the FCC has taken no action to mitigate avian mortality at communication

16 The FCC specifically directed its consultants to ignore the regulatory, legal, policy, and administrative requirements of NEPA, ESA, MBTA and other federal laws in their analysis. See Exhibit B at 1-2. Thus, the Avatar Report makes no recommendations that would correct the violations of federal environmental laws. 17 Petitioners have submitted comments and a scientific analysis to the FCC detailing why the consultants’ recommendations do not “adequately represent the current state of scientific knowledge about bird kills,” and “are insufficient to address the adverse impacts of communication towers on birds.” See Exhibit BB at 1 and Exhibit G at 1.

24

towers that the agency has known about for nearly ten years. Moreover, there is no indication of

when this prolonged second comment process will end, and the FCC has made no commitment

to take final action on Petitioners’ requests even after the comment period is concluded. The

FCC’s delay not only prevents Petitioners from obtaining relief, but also frustrates the future

jurisdiction of this Court.

D. The FCC’s Delay Is Unreasonable Because It Ignores the Available Scientific Evidence of the Impact of Communication Towers upon Migratory Birds.

Even if the FCC’s request for public comment on the impact of bird strikes was

legitimate, the FCC’s delay contravenes scientific evidence that bird mortality at communication

towers potentially threatens the continued viability of a number of species, contrary to assertions

by the regulated industry members.18 For example, comments by the USFWS directly controvert

industry’s claim that the number of birds killed by towers is relatively small. See Exhibit B at 3-

63 (citing USFWS comments concluding that the national and regional mortality estimates of

birds documented killed by tower collisions represent a significant and unacceptable impact on

avian populations). The comments submitted to the FCC by the Petitioners further illustrated the

significance of tower mortalities, noting that documented bird mortalities at communication

towers include mortality of over fifty species that are endangered or require special management

attention according to the USFWS’ Birds of Management Concern List (2002). See Exhibit B at

3-64 (citing Petitioners’ comments).

E. The FCC’s Delay Harms Human Welfare

The FCC’s failure to address the petitions before it is particularly egregious because it

harms the welfare of Petitioners’ members that watch, study and protect birds. For example, in

his job as an expert ornithologist, ABC member Philip C. Stouffer observes and researches bird

25

species that migrate through the Gulf Coast region of Louisiana, including many birds that have

been documented as killed at communication towers. See Declaration of Philip C. Stouffer

(Exhibit E). FCC’s delay results in continued mortality to bird species that Mr. Stouffer

studies, and thus harms his interest in observing and researching those birds in his professional

career. Id at ¶10.

ABC member Joy Haynes Hester has participated in bird studies on the Texas coast in

her job as Executive Director of the Houston Audubon Society, and she hopes to participate in

such studies in the future. See Declaration of Joy Haynes Hester, (Exhibit CC at ¶ 10.a). Also,

as part of her job, Ms. Hester is currently planning a birding trip to south Texas to cultivate

donors, where she hopes to find and show donors some of the bird species that have been

documented as killed by communication tower collisions. Id. at ¶ 9. FCC’s delay harms her

professional interests by increasing mortality of birds she watches, shows and studies as part of

her job. Id. Similarly, ABC member James A. Cox researches migratory and non-migratory

birds and manages habitat for those birds as part of his job as a vertebrate ecologist. See

Declaration of James A. Cox (Exhibit DD at ¶ 4). FCC’s delay harms his professional interests

because birds that Mr. Cox studies and manages are endangered by nearby communication

towers that do not conform with bird-safe design. Id. at ¶ 11.d.

FCC’s delay also harms the welfare of Petitioners’ members who enjoy recreational

birdwatching. For example, ABC member Joy Haynes Hester enjoys recreational birdwatching

throughout the year in areas on the upper Texas Gulf Coast. See Exhibit CC at ¶ 7. The FCC’s

delay harms her interest by increasing mortality of migratory bird species that she hopes to

observe in the course of her future birdwatching activities. Id.

18 This scientific evidence is comprehensively analyzed in a report by Land Protection Partners filed on February 14, 2005 with the FCC. The authors of this report have conducted critical research, including research at communication towers, on lighting effects on birds. See Exhibit G at 1.

26

27

Finally, the FCC’s delay harms the Petitioner ABC’s interests in protecting and

promoting the survival of bird species throughout the Americas. See Declaration of Philip C.

Stouffer (Exhibit E at ¶¶ 3 and 10.b) and Declaration of Joy Haynes Hester (Exhibit CC at ¶¶ 3

and 10.e). By allowing bird deaths at communication towers to continue unmitigated, the

FCC’s delay constitutes a concrete and demonstrable injury to ABC’s activities. In contrast,

compliance with the FCC’s obligation to resolve the Petitioners’ requests will not impair the

agency’s regulatory activities. Simple tower design modifications can minimize bird mortality at

communication towers without impeding the provision of telecommunication services or in any

way compromising aviation safety. See Clark, Letter to Regional Directors, (Exhibit H),

Longcore, Ph.D, et al. (Exhibit G), and USFWS Reply Comments to FCC (Exhibit C).

CONCLUSION

For the foregoing reasons, the American Bird Conservancy and Forest Conservation

Council respectfully request the Court to order the FCC to address and take final, justiciable

agency action on Petitioners’ August 26, 2002 Petition within the next three months.

DATED: April 8, 2005

Respectfully submitted, _______________________ Jennifer C. Chavez Stephen E. Roady Earthjustice 1625 Massachusetts Av. NW, Suite 702 Washington, DC 20036 Phone: (202) 667-4500 Fax: (202) 667-2356 jchavez@earthjustice.org Attorneys for Petitioners

EXHIBITS

ADDENDUM

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

) ) In re AMERICAN BIRD CONSERVANCY ) and FOREST CONSERVATION COUNCIL, ) Petitioners. ) Civil Action No. ) )

CERTIFICATE OF PETITIONERS

AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Rule 28(a)(1)(A), the Petitioners American Bird Conservancy and Forest

Conservation Council hereby submit the following Certificate as to Parties, Rulings and Cases:

I. PARTIES AND AMICI

Parties, Intervenors and Amici Who Appeared Before the Agency.

American Bird Conservancy, Forest Conservation Council, and Friends of the Earth

appeared before the Federal Communications Commission in connection with their Petition for

environmental compliance filed August 26, 2002 (attached hereto as Exhibit K).

Parties, Intervenors and Amici in This Court.

The Petitioners in this case are American Bird Conservancy (“ABC”) and Forest

Conservation Council (“Council”). The Respondent in this action is the Federal

Communications Commission (“FCC”) and Kevin J. Martin, Chairman of the FCC.

Disclosures Pursuant to D.C. Circuit Rule 26.1:

The Petitioners hereby make the following disclosures required by D.C. Circuit Rule

26.1:

American Bird Conservancy

Petitioner American Bird Conservancy is a national non-profit organization, whose

mission is to conserve wild birds and their habitats throughout the Americas.

The following are parent companies, subsidiaries or affiliates of American Bird

Conservancy that have issued shares or debt securities to the public: none.

Forest Conservation Council

Forest Conservation Council is a national non-profit organization, whose mission is to

protect and restore forests and other wildlands throughout the United States and to safeguard the

populations of plants, animals, and fish that depend on native forest ecosystems.

The following are parent companies, subsidiaries or affiliates of Forest Conservation

Council that have issued shares or debt securities to the public: none.

II. RULINGS UNDER REVIEW

Because this petition for mandamus seeks enforcement of the FCC’s duty to conclude a

matter presented to it within a reasonable time, there are no rulings under review.

III. RELATED CASES

This Court denied the Petitioners’ previous request for writ of mandamus without

prejudice to renewal in the event of significant additional delay. See In re Forest Conservation

Council Inc., et al., No. 03-1034 (July 2, 2003) (Exhibit DD hereto). Petitioners are unaware of

any other cases that are related under the meaning of D.C. Circuit Rule 28(a)(1)(C).

DATED: 04/08/05 Respectfully submitted, _____________________ Jennifer C. Chavez Stephen E. Roady

Earthjustice 1625 Massachusetts Ave., NW Washington, DC 20036-2212 (202) 667-4500 (t) (202) 667-2356 (f) Attorneys for Petitioners

CERTIFICATE OF SERVICE I hereby certify that on April 8, 2005, the foregoing Petition for Writ of Mandamus was served by United States first-class mail to the following: Kevin Martin, Chairman Federal Communications Commission 445 12th Street SW Washington, DC 20554 __________________ Emily Robinson Litigation Assistant Earthjustice 1625 Massachusetts Ave., NW Washington, DC 20036